“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Wednesday, April 23, 2014

This morning I had a chance to watch the Election Board "investigatory hearing" into the May 2012 seizure of non-slated candidate Zach Mulholland's literature during the May 2012 primary against slated candidate Dan Forestal. As to be expected, the Board members (Chmn. Cody Kendall, Vincent Perez, and Clerk Beth White) ignored the previous Board members' (Chmn. Mark Sullivan, Patrick J. Dietrick and Beth White) deliberate and knowing violation of a 2003 federal court consent decree in which the Marion County Election Board agreed the law - which prohibits candidates from passing out literature with other candidates names on it without their express written approval, a law that protects the "official slate" in Marion County ("Slating Statute") - is unconstitutional and the Board would not enforce it.

Zach Mulholland

The first witness called was Judge Tom Carroll who was a candidate at the same poll location Mulholland was working, a Lutheran church at 10th and Ritter Avenue. Judge Carroll testified about Mulholland passing out literature, which featured Mulholland, President Barack Obama and gubernatorial candidate John Gregg on it. Judge Carroll testified that Mulholland told voters it was the "official Democratic slate" and that he was the "official slated candidate." (During previous conversations, Mulholland vehemently denies this claim by Judge Carroll.) Judge Carroll testified about former Democratic County Chairmen Ed Treacy and Kip Tew making a visit to the polling location and having angry confrontations with Mulholland regarding his literature being a violation of the Slating Statute.

Judge Carroll told the Board that "once a lawyer lies to me he never has my trust again." Although Judge Carroll had reported the alleged violation of the Slating Statute to the Election Board, Carroll was never asked if he knew about the federal court order declaring the statute unconstitutional and that the Board was enjoined from enforcing it against Mulholland. One would hope that a sitting county judge would not knowingly encourage the enforcement of an unconstitutional statute in direct violation of a federal court order.

Next up was former Mark Sullivan, former Election Board Chairman Like Carroll and Tew, Sullivan
is an attorney. During his testimony, Sullivan admitted that during his tenure on the Board there had other occasions in which the Board enforced the Slating Statute. Of course no board member asked Sullivan if when he voted to enforce the Slating Statute against Mulholland he was aware of the 2003 federal order prohibiting the enforcement of the statute.

Cody Kendall, Chair
Marion County Election Board

Next up was former Democratic Marion County Chairman Kip Tew. Tew started off with a self-serving statement about how slating simply reflects the view of precinct committeeman and vice committeemen, ignoring the fact that Marion County party chairman regularly rig the vote by appointing "mummy dummies" whose sole job is simply to vote the way the chairman wants at the slating convention. In fact, Mulholland did go through slating against Dan Forestal only to pay his fee and get an eligible list of PCs and VPCs filled with people who not coincidentally had the last name "Forestal."

Tew was the only witness who acknowledged that there was a federal court order against the enforcement of the Slating Statute. When Mulholland, who is also an attorney, reminded Tew about the order, the former Democratic county chairman's response was that it was "not for me to decide" whether the law could be enforced. In fact, as an officer of the court, Tew has a legal and ethical obligation to follow a federal court order. Yet Tew did not do that, instead choosing to acted in what appears to be utter contempt for that 2003 federal court decision by having an angry confrontation in which he demanded non-slated Mulholland's literature.

Tew closed out the testimony. Next up was Board legal counsel Andrew Mallon. Although the Board's decision in 2012 was based entirely on the Slating Statute, Mallon today suggested other theories. First, Mallon argued that Mulholland's disclaimer was insufficient because it didn't specifically say it was not "authorized" by Gregg, who was the only other candidate as required by IC 3-9-3-2.5. (Mallon apparently forgot that President Obama was also a candidate in the May 2012 Democratic primary.) Mallon did admit that the Board usually rectifies that defect by allowing the disclaimer to be handwritten on the offending materials, an option Mulholland was never provided undoubtedly because that was not the justification used by the 2012 Board for the seizure.

Unwilling to stop with a minor (some would say "petty" violation of election law) Mallon proceeded to suggest that Mulholland's may have also committed voter fraud by violating IC 3-14-2-21, i.e. "fraudulent inducement to vote other than as intended," a Class D felony.

The behavior of Democratic board member Cody Kendall and Republican board member Vincent Perez at the hearing was particularly appalling. Kendall and Perez did not act a single question about knowledge various people, including 2012 Board members and people like Tew and Judge Carroll, had about the fact that the Board was specifically barred from enforcing the Slating Statute. All they asked were softballs designed to cast Mulholland in a bad light. Perez stated that he was "very disturbed" about the testimony and that it was "clear the Board acted in good faith" when it enforced the statute against the statute, an incredible comment since neither or Kendall asked any questions about people's knowledge of the 2003 federal court order. Clerk Beth White clearly looked uncomfortable throughout the hearing and said nothing with regard to the Mulholland investigation even though she was the only remaining Board member from 2012. White clearly did not want to participate in the charade.

Chairman Kendall closed the meeting by saying the Board would take two weeks to mull things over and decide what to do. Next Election Board meeting is May 2nd.

Note: Given their complete lack of regard as to the 2003 federal court order, I was curious to see if Perez and Kendall are attorneys. Vincent Perez is a licensed attorney but he does not appear to practice, instead listing Perez Forensic Strategies on the Roll of Attorneys. Kendall is also an attorney. While Kendall lists an Anderson address on the Roll of Attorneys, he has apparently opened up a law office on the north side of Indianapolis called "Kendall and Associates." Thus neither Perez or Kendall have any excuse for participating in the continued contempt the Election Board is showing toward the federal courts. They should both be brought before the federal district court and questioned as to why they should not be held in contempt for their conduct in continuing to harass Mulholland with a pointless "investigation."

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.